By *Jomo Sanga Thomas
(Plain Talk, June 21, 2019)
Vincentians should be proud of CCJ president, Adrian Saunders, and all Caribbean people should be celebrating the most recent decision of the Caribbean Court of Justice. What is to be celebrated here is the swiftness with which this critically important matter worked its way through our judicial system, and the thoroughness of the decision delivered by Justice Saunders. This case should put to rest the notion that a regional appellate court would be reluctant or find it impossible to rule against the governing political class in our region.
In a landmark decision that sent shock waves throughout Guyana last Tuesday, the CCJ ruled that the opposition-sponsored no-confidence motion (NCM) against the coalition government was successfully passed on Dec. 21, 2018, having acquired a majority of 33 votes from the 65 members in the national assembly.
In ruling that the no confidence motion was successfully passed, the CCJ dismissed government’s contention that 34 votes were required. The CCJ rejected government’s formula which provided that the 65 members of the National Assembly had to be divided by two, which would result in 32.5, but since the .5 represents half and there is no half-member, that number needs to be rounded off to 33, and add one more, making it 34 votes — an absolute majority.
“The requirement for all the elected members of the national assembly referred to the total number of votes or seats in the assembly irrespective of the number of members who actually vote. In determining that the half plus one rule is not applicable, the court determined, Since the national assembly comprised an odd number of members, (that is 65), when all the members of the national assembly are present and vote, all that is necessary is clearly in the court’s view, at least 33 votes,” the court held.
The CCJ said: ‘On the 21st December 2018 we would venture to suggest that every member of the assembly knew this. The clerk certainly knew it. And so too, did the speaker, who announced that, the motion had been passed. Since the assembly comprised an odd number, there is no need to imply into the Constitution any formula for defining a majority as being ‘half plus one’.”
It will be recalled that Guyana’s Chief Justice Roxane George had ruled that only 33 votes were needed for the motion to be passed. However, the court of appeal overturned her ruling, and adapted government’s half plus one formula, when it ruled that the motion was not validly carried since, 34 votes were not obtained.
The CCJ rubbished that view, arguing disdainfully “one does not have to study law to appreciate that the word ‘majority’ means the greater of two parts. So, for example, it is trite that when a Court of Appeal sits as a panel of three, a majority decision is 2:1. The Chief Justice (Roxane George) was therefore right when she adjudged that a majority from among 65 members is a minimum of 33.”
Moreover, the CCJ ruled that now-expelled AFC Parliamentarian Charrandass Persaud’s, whose crucial “yes” vote on the NCM tipped the scales against the government, was valid.
The CCJ reasoned that “Article 165 protects proceedings of the assembly from being invalidated due to the participation or presence of any person who was not entitled to participate in or be present at those proceedings. It would obviously apply where, after voting took place on a motion of no confidence, it is later discovered that a member of the Assembly who was present and who voted on the motion was not entitled to be a member of the assembly.”
The CCJ also addressed the claim that Persaud was disqualified to be elected as a member of the national assembly, and was therefore not qualified to vote as member owing to him being a dual citizen of Guyana and Canada.
Justice Saunders, speaking for the majority held CCJ ruling, said, “The Constitution specifies that it was for Parliament and not the courts to lay down the practice and procedure in relation to the courts jurisdiction and powers in this regard. Although the Constitution gave the courts exclusive jurisdiction to determine questions of the qualification of members of the national assembly, the courts exercised that jurisdiction strictly in keeping with the provisions of Acts of Parliament.”
He noted that even if the court had jurisdiction it would have been constrained to find that the challenge to Persaud’s election to the assembly had been out of time. Any challenge to the eligibility of a member must be filed within 28 days following the election.
The CCJ rejected the argument that there was a fundamental difference between the constitutional phrase “vote of confidence” and the “vote of no confidence”, which was passed. The Government argued that only members of government can move motions of confidence. But the CCJ concluded that the constitution gave effect to the fundamental principle of responsible or accountable government — a principle that required the government to resign when it no longer enjoyed the confidence of parliament.
By any measure, this is a sound, reasonable and mature decision by the Caribbean Court of Justice. This court is on record of passing crucially important decisions, whether they concern minority, indigenous rights as in the Belizean Mayan case, or the Joseph death penalty case, the Myrie case regarding rights of immigrants or what constitutes valid documents for establishing citizenship.
The court’s thoroughness, its immediacy, its availability and accountability as was reflected in the crucial election petition case regarding the right of academics to be registered to vote in the Barbadian elections, demonstrate that this court is cutting edge, progressive and unafraid to decide matters without fear or favour.
The CCJ deserves our support. We do ourselves a disservice when we shun a homegrown court on the spurious ground that CCJ as a final court cannot be trusted.
*Jomo Sanga Thomas is a lawyer, journalist, social commentator and Speaker of the House of Assembly in St. Vincent and the Grenadines.
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